Recycled news and (hopefully)
original commentary from a
New England Progressive

Friday, November 11, 2005

"I cannot recall ..."

It looks like Judge Samuel Alito, nominee for the U.S. Supreme Court may have been having a few lapses.

Of memory, that is.

One of the key points for the nomination hearings has been how Alito would handle potential conflicts of interest in cases that might come before the US Supreme Court - a real possibility, as Alito had a lengthy tenure as an appeals court judge, and served as a federal prosecutor for a long time before that. Both of those situations could be conditions that would land cases he worked on (as a prosecutor) or heard (as a judge) before the Supreme Court, as that COurt can hear cases that have had long histories.

Of more immediate concern, however, is an apparent discrepency over what Judge Alito said were potential conflicts of interest he would recuse himself over.

A continuing problem, for those who would like to see pesky facts go away, is that in today's world of information every utterance, every piece of paper authored, is filed away somewhere.

So filed was the questionnaire that Samuel Alito filled out before he was confirmed as a appelate judge in 1990.

The questionaire that Alito filled out, and presented to the Senate as part of his confirmation hearings preparations, described four classes of case he felt he would have to recuse himself over -- three classes concerned his personal finances, and the fourth his sister's law firm (I only glanced at the questionaire results, but I remember thinking it was odd that he would find no need to recuse himself if a case he had heard as a judge were to come before him, nor a case he might have ben involved with as a prosecutor)

According to a Newsday story, ALito was involved in a 1996 case involving Smith BArney (his brokerage house). In another case, in 2002, Alito was involved in a case concerning the Vanguard Funds (which holds his mutual funds). In that case he recused himself only after a plaintiff complained about the possible conflict of interest, and after the fact, protyested, in writing, over the removal.

Now it appears that Alito was involved in a case, in 1995, where his sister's law firm was representing one of the parties in a case that he reviewed as part of the appeals court bench.

WASHINGTON -- Judge Samuel A. Alito Jr., who said in 1990 that he would disqualify himself from cases involving his sister's law firm, was a member of an appeals court that reviewed a 1995 case in which his sister's firm represented one of the parties, according to court records.

It is at least the third instance in which there is no indication the Supreme Court nominee recused himself from the kind of case he had promised a Senate committee he would avoid as a federal judge.

The news of the case, which had not been reported previously, comes one day after two Democratic senators said they wanted more answers to conflict-of-interests questions about Alito's involvement in cases regarding Vanguard and Smith Barney -- investment firms Alito had accounts with.

Rosemary Alito, a lawyer who is Samuel Alito's sister, confirmed in a telephone interview yesterday that she was at the law firm of McCarter & English of Newark when the decision was made in the case.

But she said she was ''absolutely not" personally involved in the case, which involved repayment of a bank loan. She declined to comment further.

The US Court of Appeals for the Third Circuit, acting as a full court, denied a borrower's petition for a rehearing in the case. The bank that held the loan, MidAtlantic National Bank, was represented by Rosemary Alito's firm.

The decision by the full court in the case lists Samuel Alito and 14 other judges as being "present" and notes that one judge -- not Alito -- said the case should be reheard. It lists McCarter & English as the counsel for the bank. The decision -- which supported the bank's position -- provides no indication that Alito or any other judges recused themselves.

Dana Perino, a White House spokeswoman, said last night that Alito ''does not have recollection of this case."

//snip//

Did Alito think that he would not get questioned about these cases, especially after he said, in writing, he would recuse himself?

A simple explanation about how his service as an appelate judge didn't warrant recusal, but it would as a member of the Supreme Court bench would have been helpful.

Did he think that the details would not be noticed? With however many reporters and bloggers with all the mania of zealotry poring over the details?

Alito's responses to the Senate questionnairen are in this .PDF file (I don't know how to pin-point the hyperlink into the document, so you will have to troll through it yourself to find his written homework)

It would be nice if we could get a nominee who would fill out their homework and turn it in on time the *first* time.